GROOMING OFFENCES (CTH)

The Commonwealth Criminal Code Act 1995 (“the Code”) contains the offences that criminalise the grooming of children to engage in sexual activity outside Australia. This article focuses on and explains three grooming offences contained under the Criminal Code Act 1995.

Grooming a Child to Engage in Sexual Activity Outside Australia – Section 272.15 Criminal Code Act 1995

It is an offence to groom a child to engage in sexual activity outside Australia pursuant to Section 272.15 of the Code. The maximum penalty for this offence is 15 years imprisonment for first time offenders. Where a person has a prior conviction for child sexual abuse the maximum penalty is 15 years prison with a 4-year mandatory minimum gaol sentence. 

The following acts constitute grooming a child to engage in sexual activity outside Australia:

• An adult frequently visits a specific youth centre or sports club while on vacation in a foreign country. The person provides expensive equipment, pays for tuition for a 13 year old student and spends time mentoring the child with the intention to make it easier for the adult to engage in sexual activity with the child, 
• An Australian man meets a child and their family in a foreign village. He begins taking the child on day trips to “tourist sites,” during which he gradually introduces sexual topics or physical closeness to test the child’s boundaries and build a “secret” bond.
• An individual in a physical meeting in Australia tells a friend (who is actually an undercover operative) that they have a “contact” in a foreign country who can “prepare” a child for them. The individual then sends a series of “instructions” and gifts to the “contact” to give to the child.

What Must Be Proven?

For a person to be found guilty of grooming a child to engage in sexual activity outside Australia the prosecution must prove each of the following matters beyond a reasonable doubt:

• You, 
• “Engaged in conduct” in relation to a child, and 
• Did so with the “intention” of making it easier to “procure” the child to “engage in sexual activity” (whether or not with the child) outside Australia, and 
• The child is under 16 or you believed the child was 16, and 
• Does one or more of the following:
  • The conduct engaged in occurs wholly or partly outside Australia,
  • The child is outside Australia when the conduct occurs, or
  • The conduct occurs wholly in Australia and the child is in Australia when that conduct occurs.  

The offence section makes it clear that a person may be found guilty of the offence even if it is impossible for the referred sexual activity to take place. Further, it does not matter whether the child is a fictitious person represented to the person as a real child.

If the prosecution does not prove every single one of the above elements, you will be found not guilty. 

Definitions:

The Act defines “conduct” at Section 4.1(2) as an act, an omission to perform an act or a state of affairs. “Engage in conduct” is defined to mean to do an act or to omit to perform an act. 

Section 272.2 of the Act prescribes when conduct causes a person to engage in sexual intercourse or other sexual activity when a person’s conduct substantially contributes to the other person engaging in sexual intercourse or other sexual activity. 

The dictionary of the Act defines “procure a person to engage in sexual activity” to include encouraging, enticing or recruiting the person to engage in that activity or induce the person (whether by threats, promises or otherwise) to engage in sexual activity. The dictionary further defines “engage in sexual activity” as without limiting when a person engages in sexual activity, a person is taken to engage in sexual activity if the person is in the presence of another person (including by means of communication that allows the person to see or hear the other person) while the other person engages in sexual activity.

Which Court Will Hear the Matter?

This offence is Strictly Indictable, which means that it must be finalised (either by way of a trial or sentence) in the District Court. The matter will still start in the Local Court and it will be subject to the Early Appropriate Pleas of Guilty (EAGP) Scheme.

Possible Defences to Grooming a Child to Engage in Sexual Activity Outside Australia:

The following defences may be available for a grooming a child to engage in sexual activity outside Australia charge:

• That the defendant proves that at the time the defendant engaged in conduct constituting the offence, he or she believed that the child was at least 16. The defendant bears the legal burden of proving this belief pursuant to Section 13.4 of the Act. 
• That the conduct engaged in by the defendant was not with the intention to make it easier to procure the child to engage in sexual activity. 
• The defendant did not “engage in conduct” with the child.
• That the defendant’s conduct did not substantially contribute to the child engaging in sexual activity. 

Use Carriage Service to Groom a Child to Engage in Sexual Activity Outside Australia – Section 474.27 Criminal Code Act 1995

It is an offence to use a carriage service to groom a child to engage in sexual activity outside Australia pursuant to Section 474.27 of the Code. The maximum penalty for this offence is 15 years imprisonment. Where a person has a prior conviction for child sexual abuse the maximum penalty is 15 years prison with a 4-year mandatory minimum gaol sentence.

The following acts constitute use carriage service to groom a child to engage in sexual activity:

• An adult communicating with a child overseas via social media and over several months sending money or gifts to the child to build trust before flying the child to another country outside Australia specifically to engage in sexual activity, 
• An adult using a fake online profile to build a relationship with a child living overbroad with the adult sending or exchanging sexually explicit messages or photos and proposing to meet the child outside Australia for the purpose of sexual acts,
• An adult sponsors or financially supports a child from a different country and uses the payments and communication to normalize sexual conversations and arrange a visit with the child with the expectation of sexual activity in exchange for continued financial support. 

What Must Be Proven?

For a person to be found guilty of grooming a child to make it easier to procure the child for sexual activity the prosecution must prove each of the following matters beyond a reasonable doubt:

• You (the sender), 
• “Use a carriage service” to “transmit” a communication to another person (the recipient), and 
• The sender uses the carriage service with the “intention” of making it easier to “procure” the recipient to “engage in sexual activity” with the sender, and
• The recipient is someone who is, or who the sender believes to be, under 16 years of age, and 
• The sender is at least 18 years of age. 

If the prosecution does not prove every single one of the above elements, you will be found not guilty. 

Definitions:

A person is taken to not “use a carriage service” at Section 473.5 of the Act where:

• The person is a carrier and, in engaging in that conduct, is acting solely in the person’s capacity as a carrier; or
• The person is a carriage service provider and, in engaging in that conduct, is acting solely in the person’s capacity as a carriage service provider; or
• The person is an internet service provider and, in engaging in that conduct, is acting solely in the person’s capacity as an internet service provider; or
• The person is an Australian hosting service provider and, in engaging in that conduct, is acting solely in the person’s capacity as an Australian hosting service provider.

A “carriage service” is defined in the Telecommunications Act 1997 to mean “a service for carrying communications by means of guided and/or unguided electromagnetic energy”.

The mental element of “intention” is defined under Section 5.2 of the Act to apply to conduct (using a carriage service) if he or she means to engage in that conduct. 

“Transmit” is defined at Section 474.17A(4) to include, make available, publish, distribute, advertise and promote. 

The dictionary of the Act defines “procure a person to engage in sexual activity” to include encouraging, enticing or recruiting the person to engage in that activity or induce the person (whether by threats, promises or otherwise) to engage in sexual activity. 

The dictionary further defines “engage in sexual activity” as without limiting when a person engages in sexual activity, a person is taken to engage in sexual activity if the person is in the presence of another person (including by means of communication that allows the person to see or hear the other person) while the other person engages in sexual activity.

Section 478.28 of the Code prescribes the application of “absolute liability” to apply to whether the recipient is someone who is under the age of 16. Absolute liability as defined at Section 6.2 of the Code to mean that there is no fault / mental element attached to the related physical element of the offence and that the defendant is unable to raise the defence of honest and reasonable mistake of fact. Practically this means that the defendant does not need to intend nor have knowledge that nor be reckless to whether the recipient was under 16, only that the recipient was in fact under 16 with the defendant being unable to rely on an honest and reasonable mistake of fact. 

Which Court Will Hear the Matter?

This offence is Strictly Indictable, which means that it must be finalised (either by way of a trial or sentence) in the District Court. The matter will still start in the Local Court and it will be subject to the Early Appropriate Pleas of Guilty (EAGP) Scheme.

Possible Defences to Using a Carriage Service to Groom a Child: 

The following defences may be available for a using a carriage service to groom a child to procure to engage in sexual activity outside Australia charge:

• That the defendant proves that at the time the defendant engaged in using the carriage service, he or she believed that the recipient was at least 16 years of age – Section 474.29(5),
• The defendant did not intend to use a carriage service, or did not “use” a carriage service, 
• The sender did not have the intention to make it easier to procure the recipient to engage in sexual activity, 
• The sender was under 18 years old, 
• The recipient was, or the defendant believed the recipient was over 16 years old. 

Using a Postal or Similar Service to Groom Persons Under 16 – Section 471.25 Criminal Code Act 1995

It is an offence to use a postal or similar service to groom a person under 16 to engage in sexual activity pursuant to Section 471.25 of the Code. The maximum penalty for this offence is 15 years imprisonment. Where a person has a prior conviction for child sexual abuse the maximum penalty is 15 years prison with a 4-year mandatory minimum gaol sentence.

The following acts constitute use postal or similar service to groom a child to engage in sexual activity:

• An adult sends letters and packages (including gifts or money) to a child overseas for several months to build trust with the child before demanding the child engage in sexual activity as payment for the gifts, 
• An individual uses a courier to send a “care package” to a child that includes an iPod pre-loaded with indecent music or messages, intending to desensitize the child and prepare them for a physical meeting for sexual purposes. 

What Must Be Proven?

For a person to be found guilty of using a postal or similar service to groom a person under 16 years of age for sexual activity the prosecution must prove each of the following matters beyond a reasonable doubt:

• You (the sender), 
• “Causes” an “article” to be “carried by” a “postal or similar service” to another person (the recipient), and 
• The sender does this with the “intention” of making it easier to “procure” a person (the child) to “engage in sexual activity” with the sender, and 
• The child is someone who is, or who the sender believes to be, under 16, and 
• The sender is at least 18. 

Section 471.8 of the Code makes it clear that a person may be found guilty of the offence even if it is impossible for the referred sexual activity to take place. Further, it does not matter whether the child is a fictitious person represented to the person as a real child.

If the prosecution does not prove every single one of the above elements, you will be found not guilty. 

Definitions:

An “article” is defined in Section 470.1 to have the same meaning as in the Australian Postal Corporation Act 1989. An article is said to be “carried by post” means carried by or through Australia Post. 

A “postal or similar service” is also defined in Section 470.1 to mean: 

1. A postal service (within the meaning of paragraph 51(v) of the Constitution); or
2. A courier service, to the extent to which the service is a postal or other like service (within the meaning of paragraph 51(v) of the Constitution); or
3. A packet or parcel carrying service, to the extent to which the service is a postal or other like service (within the meaning of paragraph 51(v) of the Constitution); or
4. Any other service that is a postal or other like service (within the meaning of paragraph 51(v) of the Constitution); or
5. A courier service that is provided by a constitutional corporation; or
6. A packet or parcel carrying service that is provided by a constitutional corporation; or
7. A courier service that is provided in the course of, or in relation to, trade or commerce:
   1. Between Australia and a place outside Australia; or
   2. Among the States; or
   3. Between a State and a Territory or between 2 Territories; or
8. A packet or parcel carrying service that is provided in the course of, or in relation to, trade or commerce:
   1. Between Australia and a place outside Australia; or
   2. Among the states; or
   3. Between a state and a territory or between 2 territories.

The mental element of “intention” is defined under Section 5.2 of the Act to apply to conduct (making it easier to procure the person to engage in sexual activity) if he or she means to engage in that conduct. 

The dictionary of the Act defines “procure a person to engage in sexual activity” to include encouraging, enticing or recruiting the person to engage in that activity or induce the person (whether by threats, promises or otherwise) to engage in sexual activity. 

The dictionary further defines “engage in sexual activity” as without limiting when a person engages in sexual activity, a person is taken to engage in sexual activity if the person is in the presence of another person (including by means of communication that allows the person to see or hear the other person) while the other person engages in sexual activity.

Section 471.27of the Code prescribes the application of “absolute liability” to apply to whether the recipient is someone who is under the age of 16. Absolute liability as defined at Section 6.2 of the Code to mean that there is no fault / mental element attached to the related physical element of the offence and that the defendant is unable to raise the defence of honest and reasonable mistake of fact. Practically this means that the defendant does not need to intend nor have knowledge that nor be reckless to whether the recipient was under 16, only that the recipient was in fact under 16 with the defendant being unable to rely on an honest and reasonable mistake of fact. 

Which Court Will Hear the Matter?

This offence is Strictly Indictable, which means that it must be finalised (either by way of a trial or sentence) in the District Court. The matter will still start in the Local Court and it will be subject to the Early Appropriate Pleas of Guilty (EAGP) Scheme.

Possible Defences to Using a Postal or Similar Service to Groom a Child: 

The following defences may be available for a using a carriage service to groom a child to procure to engage in sexual activity outside Australia charge:

• That the defendant proves that at the time the defendant caused the article to be carried, the defendant believed that the recipient was at least 16 – Section 471.29 
• The sender did not intend to cause the article to be posted, 
• The sender did not have the intention to make it easier to procure the recipient to engage in sexual activity, 
• The sender was under 18 years old, 

Common Questions About Grooming Offences:

Will I receive a criminal conviction?

A conviction and criminal record for this offence is extremely likely. 

In NSW, a court can impose any of the following penalties for grooming offences.

• Gaol Sentence
• Intensive Corrections Order (ICO)
• Community Corrections Orders (CCO)
• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for grooming might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover a conviction for an offence of violence can completely rule out certain career paths such as teaching and a range of government employment options. Violent offences may also result in sentences that include imprisonment even where an individual has no previous convictions.

Will I go to Gaol?

Due to the seriousness of the offences of grooming, it is most likely that a person charged with any of these offences will be sentenced to full time custody in gaol. It is even more likely that a person will receive a term of full-time imprisonment for this offence than a community-based sentence as an Intensive Corrections Order (ICO) is not an available sentencing option for prescribed sexual offences which includes grooming offences pursuant to Section 67(2)(e) of the Crimes (Sentencing Procedure) Act 1999. Practically this means where the offending crosses the threshold under Section 5 of the Crimes (Sentencing Procedure) Act 1999 (that the offence is so serious that no other sentencing option is appropriate) the Court must sentence that person to a term of imprisonment. 

Finally, where an offender has a prior conviction for a child sexual assault offence there is a mandatory minimum gaol sentence of 4 years in accordance with Section 16AAB of the Crimes Act 1914. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.